APPEALS RESOLUTION OFFICER DECISION
decision number:
20230023
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (not participating)
REPRESENTED by:
self
HEARING:
VIDEOCONFERENCE – January 12, 2023
HEARD by:
l. mansueti, appeals resolution officer
January 18, 2023
ISSUE
The worker objects to the Case Manager (CM) decision dated May 9, 2022 communicating the closure of loss of earnings (LOE) benefits on the basis he resigned from his employment.
BACKGROUND
On March 22, 2021, the worker stepped out of a motor home down a 2-foot drop to the ground and twisted their left knee while in the course of their employment. They were working as a Shop Technician at the time of injury and had worked with the employer for approximately 2 years.
Initial entitlement was accepted for a left knee sprain. LOE benefits were approved for intermittent periods of lost time from work. The worker returned to work with the employer, performing self-accommodated duties. Entitlement was subsequently expanded to include a left knee meniscal tear and aggravation of a previously asymptomatic left knee degenerative condition. The worker underwent left knee surgery to repair the meniscal tear on March 29, 2022, which was approved under this claim.
On May 9, 2022, the worker informed the CM they had secured employment with a new employer starting that day, and they declined to participate in the Return to Work (RTW) Specialist meeting. The worker advised he planned to inform the employer of their resignation. The decision letter dated May 9, 2022 indicated the worker decided to resign as they secured new employment. The letter communicated the worker ended their employment relationship with the employer; therefore, no further LOE benefits were in order as of May 9, 2022.
In August 2022, the worker received an 8 per cent non-economic loss (NEL) benefit in recognition of their left knee permanent impairment (PI).
The worker objected to the decision dated May 9, 2022, and this is now the issue before the Appeals Services Division (ASD).
AUTHORITY
Section 40, 42 and 43 of the Workplace Safety and Insurance Act (WSIA), 1997, as amended
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-08 RTW Co-operation Obligations
September 1, 2021
November 30, 2020
ANALYSIS
I have carefully considered all of the available information, legislation, relevant operational policies and testimony in reaching this decision. For the reasons that follow, I find the worker is entitled to the reinstatement of benefits effective May 9, 2022 and the reactivation of RTW services.
Review of the Evidence
Following the work accident, the worker was diagnosed with a left knee sprain. They returned to work with the employer on March 31, 2021, performing regular duties with accommodation. The worker testified their pre-injury job duties involved fixing and repairing motor homes. They stated it was a physical job and involved a lot of low-level work, squatting, kneeling, and working on ladders. The worker indicated the employer did not offer them modified duties post-accident, instead, they were assigned their regular work duties and was instructed to self-accommodate.
A magnetic resonance imaging (MRI) was completed on August 16, 2021, which showed evidence of degenerative changes in the knee and associated meniscal tearing. Dr. J. McCall, Orthopaedic Surgeon, assessed the worker on September 15, 2021 for their left knee injury. The report indicated the worker had a moderate degree of disability; however, they were able to continue working. Dr. McCall indicated the worker suffered a significant injury to the knee as a direct result of the workplace accident. The worker was determined not to be a surgical candidate at that time. The report indicated the worker injured their left knee while working for their former company, which was now bankrupt. The worker testified Dr. McCall had mixed up the facts, as they previously worked for a company that had gone bankrupt before working with the employer on record.
The worker was referred to the Lower Extremity Speciality Program for a comprehensive assessment. On October 27, 2021 Dr. P. Grosso, Orthopaedic Surgeon, and P. Lee, Registered Physiotherapist, assessed the worker. The report indicated the worker was performing their regular duties with self-modification and assistance as needed. The worker advanced they had difficulty managing their work duties due to ongoing symptoms. The presumptive diagnosis was meniscal tear of the left knee with associated exacerbation of pre-existing asymptomatic degenerative change. The worker received a cortisone injection. The assessment team recommended the worker commence a course of physiotherapy.
The worker commenced physiotherapy treatment on November 9, 2021. The worker returned to the Lower Extremity Speciality Program on December 8, 2021. The report indicated the cortisone injection had provided temporary symptom relief, and the worker reported physiotherapy had been going well. The report indicated the worker had difficulty managing their work duties due to ongoing symptoms. The worker advanced they were assigned work outside of their restrictions; however, they were able to redirect the work. Dr. Grosso recommended the worker continue with physiotherapy treatment and undergo a lubricant injection. The worker was recommended to continue working within their restrictions, which included limited walking, standing up to 60 minutes, occasional stair climbing, no lifting floor to waist, lifting waist to shoulder and above shoulder between 10 and 20kg, pushing and pulling between 10 and 20kg, ladder climbing 1 to 3 steps, occasional bending/twisting of the left knee, no low level work, and allow for micro-breaks as needed for position change and symptom management.
The worker testified the employer continued to assign them job duties beyond their functional abilities, and he continued to refuse unsuitable work. He indicated the employer would make snide remarks and mock them behind their back because of their work refusal, and this made them feel humiliated. The worker indicated they discussed the unsuitability of the work duties with the employer; however, their concerns were largely ignored. The worker testified they had asked the employer about a vacant desk position in the office; however, the employer refused to offer this job to them without an explanation.
On January 19, 2022, Dr. Grosso administered a lubricant injection in the worker’s left knee. The worker’s restrictions remained unchanged. The worker returned to the Lower Extremity Speciality Program for a follow-up visit on March 2, 2022. The worker reported experiencing a partial temporary benefit following the injection. No significant improvement in symptoms or in overall function was realized. The report indicated the worker was continuing to perform their regular duties with self-modification and assistance as needed; however, they continued to be assigned tasks outside their work restrictions, which they declined. For example, the worker indicated they were recently asked to work on a ladder at the highest level, which exceeded their functional abilities. The worker indicated the employer continued to encourage them to work beyond their restrictions, and they were informed the employer might no longer be in a position to continue to accommodate them. Dr. Grosso indicated the worker exhausted all non-surgical measures to improve their knee symptoms and improve function, with no success. To that end, Dr. Grosso recommended the worker undergo a left knee arthroscopy. The worker agreed to proceed with surgery.
As documented in memorandum xx dated March 8, 2022, the worker advised the CM he was being asked to perform unsuitable work, such as working on ladders for long periods of time. The worker indicated the employer stated they would no longer be accommodating the worker’s restrictions. The Human Resources Administrator (employer) confirmed with the CM that they were no longer able to comply with the worker’s restrictions; however, they could not provide a reason. The CM was directed to contact the worker’s Direct Supervisor or General Manager for more information. The CM initiated a RTW Specialist referral. As per memorandum xx dated March 15, 2022, the RTW Specialist spoke with the parties separately. The employer indicated the worker was working within their abilities, and for the time being, they were able to continue to offer work. The employer indicated the worker was permitted to decline any work they felt exceeded his restrictions. The worker confirmed with the RTW Specialist they refused any work they felt was not in keeping with their functional limitations. A RTW meeting was not scheduled.
On March 29, 2022, the worker underwent left knee arthroscopy surgery, partial medial meniscectomy, and debridement. The surgery was accepted as a responsibility of this claim, thus health care and full LOE benefits were approved. The worker was seen by Dr. Grosso on April 13, 2022 for a post-surgical consultation. The report indicated the worker was advised to remain off work until they received physiotherapy treatment for at least 2 weeks.
On April 22, 2022 (memorandum xx), the worker advised the CM that the General Manager (employer) informed them no modified work would be offered to them. The worker advised they were thinking about looking for new employment. It is noted the CM advised the worker of the implications of resigning from their employment including the potential impact on their LOE benefit entitlement. On April 24, 2022 (memorandum xx), the worker spoke with the RTW Specialist, and advised they did not want to return to work with the employer as they felt humiliated. They indicated their workplace injury and the issues they experienced at work had taken a toll on them. The worker indicated they were going to look for employment elsewhere.
The worker testified they had met with the General Manager (employer) on several occasions to discuss return to work options, and the employer informed them they did not want them back until they could perform their full regular duties. The worker testified Dr. McCall and Dr. Grosso recommended that working on their knees was not advisable, and they had recommended they think about alternative employment. The worker explained they would have returned to their full regular duties with the employer if the surgery was successful and their knee condition improved; however, they were not certain they would achieve a full recovery. The worker stated they were not actively looking for new employment in April or May 2022; instead, a job opportunity was presented to them through a friend. The prospective employer was aware of their knee restrictions, and they were prepared to offer a work trial. The worker accepted the offer of a work trial to commence on May 9, 2022.
A return-to-work meeting was scheduled for May 9, 2022. The worker contacted the RTW Specialist on May 9, 2022 to advise they would not be attending the return-to-work meeting scheduled for that day. The RTW Specialist issued the worker a co-operation warning letter. As documented in memorandum xx dated May 9, 2022, the worker contacted the CM to advise they had secured employment with a new employer starting that day. It was documented the worker would be contacting the employer that day to confirm their resignation. The CM issued a decision letter dated May 9, 2022 advising of the worker’s resignation.
The worker testified they recalled they informed the CM on May 9, 2022 that they wanted to ensure the new job worked out before they resigned. They stated that at the time they contacted the CM, they were sceptical of the new position as it was already becoming apparent the job was not going to be a good fit for them. The worker testified they never stated they were going to resign, and they confirmed they had not resigned.
On May 12, 2022, the worker contacted the CM to advise the new job had not worked out. The worker informed the CM they never actually resigned from their employment with the employer. The record contains a text message exchange between the worker and the General Manager (employer) dated May 12, 2022, wherein the worker queried as to whether they were still employed with the employer. The employer responded, “I am not aware that you have given your notice to quite [sic].” The employer asked the worker when they would be able to return to work, and when they would be able to resume full duties. The worker indicated they were scheduled to see Dr. Grosso on May 25, 2022, and they may be able to return to full duties on May 26, 2022. On May 16, 2022, the worker contacted the CM to indicate they were ready to resume RTW services.
The General Manager (employer) submitted correspondence dated May 19, 2022, which states, in part:
We were advised via regular mail (May 18, 2022) dated May 9, 2022 that [the worker] resigned from employer, without given notice of such and [the worker] has accepted new employment elsewhere.
Management has accepted [the worker’s] resignation and a ROE (Record of employment) will be issued as such based on this date.
The record contains a text chat exchange between himself and the General Manager (employer) on May 19, 2022. The worker pointed out that they had not resigned from their employment, either verbally or in writing, and that a third party (CM as per the May 9, 2022 decision letter) cannot resign on their behalf. The General Manager replied that that a third party can in fact resign on their behalf on the basis they did not co-operate in attending the return-to-work meeting scheduled on May 9, 2022, and they neglected to provide notice to the employer for their need to be off work. The worker replied they had provided updates to the employer regarding their surgery and the associated recovery timeframe. The General Manager acknowledged receipt of the worker’s updates; however, they pointed out the worker did not come to their office to ask for time off from work.
Dr. Grosso reassessed the worker at the Lower Extremity Speciality Clinic on May 25, 2022. The report indicated the worker continued to experience ongoing knee symptomology despite commencing physiotherapy. The worker reported their employer was not able to offer accommodated duties to them. It was documented that on May 9, 2022, the worker started working as a Supervisor for a Facility for large moving trailers. The new employer advised the worker they could accommodate their restrictions. The worker trialled the job for 2 days and experienced increased swelling and pain in the left knee. They were not able to continue in this work capacity. Dr. Grosso recommended the worker remain off work due to their unexpected post-operative inflammatory status.
The worker returned to the Lower Extremity Specialty Program on July 22, 2022 for a reassessment. Dr. Grosso surmised the worker reached maximum medical recovery (MMR) for the left knee as all treatment options had been exhausted. It was determined there were no further medical, surgical, or rehabilitation interventions that would significantly alter the worker’s function and allow them to return to their pre-injury occupation. The worker was determined to be fit for sedentary-type work. The worker was determined to have the following permanent restrictions:
Walking on an occasional basis
Standing up to 15 to 30 minutes
Stair climbing 5 to 10 steps, on an occasional basis
No lifting floor to waist
Lifting waist to shoulder 5 to 10 kg
Lifting above shoulder up to 5 kg
Pushing and pulling 5 to 10 kg
Ladder climbing 1 to 3 steps
Occasional bending/twisting repetitive movement of the left knee
No low-level work involving squatting or kneeling
Limit uneven ground walking
Allow for micro-breaks as needed
Allow for position changes as needed for symptom management
In August 2022, the worker received an 8 per cent NEL benefit in recognition of their left knee PI.
The worker testified they continue to remain off work. They indicated they attempted to look for sedentary work; however, they have not been successful due to limited opportunities in his rural geographical location.
Assessment of the Evidence
The first question to be determined is whether the worker resigned from their employment, thus severing their employment relationship with the employer. In review of the evidence before me, I find the worker did not resign from their employment at any time. The evidence in the record supports the worker suffered a significant left knee injury rendering them partially impaired and requiring restrictions. The worker was assigned their pre-injury work duties with the ability to self-accommodate, which proved to be challenging as they were consistently assigned work beyond their functional abilities. It is noted the employer did not offer suitable modified work to the worker at any time. The worker subsequently underwent left knee surgery and remained off work to recover post-surgery. The worker explored an employment opportunity with a new employer and accepted a work trial that commenced on May 9, 2022. The worker informed the CM and RTW Specialist of this material change in circumstances. The CM issued a decision letter dated May 9, 2022 communicating the worker had resigned from their employment; however, this was not the case. The evidence supports the worker had not communicated their resignation with the employer, either verbally or in writing at any time. This is confirmed in the General Manager’s text message dated May 12, 2022 confirming the worker was still employed with them, as no notice of resignation had been received. The text thread indicated the General Manager was anticipating the worker’s return to work later that month, which supports the employment relationship was intact. It was not until the employer received the CM’s decision letter that they learned of the worker’s “resignation.” The employer accepted the worker’s resignation as confirmed in the letter dated May 19, 2022, despite not receiving notice from the worker.
Given the finding that the employment relationship between the worker and the employer was not severed and remained intact; the next question to be determined is the worker’s LOE benefit entitlement from May 9, 2022.
Operational 18-03-02 states, in part:
If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.
I find the worker is entitled to the reinstatement of full LOE benefits effective May 9, 2022. The medical evidence in the record supports the nature and seriousness of their compensable left knee impairment prevented them from returning to any type of work at that time. The fact the worker attempted a work trial with a new employer does not break the chain of causation between the work injury and their loss of earnings. In my view, the worker’s attempt to obtain alternative employment in the face of not being accommodated by the employer with suitable modified work was done in a reasonable effort to lessen anticipated losses. I find the worker’s attempt to mitigate their wage loss should not be a basis to disentitle them from further benefits as the evidence supports he continued to be impaired as a result of his compensable left knee injury.
I will now turn my attention to the issue of co-operation. With respect to the worker’s cooperation in the RTW process, I acknowledge they declined the RTW meeting on May 9, 2022, and they were issued a cooperation warning letter from the RTW Specialist that day.
Operational policy 19-02-08 states, in part:
Workers are obliged to co-operate by:
initiating early contact with the injury employer
maintaining appropriate communication with the injury employer throughout the recovery
assisting the injury employer, as required or requested, to identify suitable work that is available and consistent with their functional abilities
giving the WSIB all relevant information concerning their RTW, and
participating in all aspects of their RTW assessments and RTW plans.
In review of the surrounding evidence in this case, I find the worker was generally co-operative in the RTW process throughout, save for declining a RTW meeting on May 9, 2022. The record indicates the worker maintained communication with the employer as well as the operating area, they participated in self-accommodated work duties, refused unsuitable work, and even expressed an interest in resuming RTW services on May 16, 2022, all of which leads me to find the worker largely demonstrated their co-operation in the RTW process.
In summation, I find the worker is entitled to the reinstatement of LOE benefits from May 9, 2022 as well as the reactivation of RTW services.
CONCLUSION
I conclude the worker is entitled to the reinstatement of LOE benefits effective May 9, 2022 and the reactivation of RTW services.
The operating area shall determine the extent and duration of benefits flowing from this decision, subject to the usual rights of appeal.
The worker’s objection is allowed.
DATED January 18, 2023
L. Mansueti
Appeals Resolution Officer
Appeals Services Division